TWN Info Service on Intellectual Property Issues (June09/01)
1 June 2009
Third World Network

WIPO: Public interest groups call for urgent action on copyright exceptions
Published in SUNS #6709 dated 29 May 2009

Geneva, 28 May (Sangeeta Shashikant) -- Several leading public interest groups from both developed and developing countries on Wednesday called for urgent action in the World Intellectual Property Organization (WIPO) on the international dimension of exceptions and limitations (E&L) to copyright.

This plea by the groups was made at the eighteenth session of WIPO's Standing Committee on Copyright and Related Rights (SCCR), meeting from 25 May to 29 May.

The public interest groups view addressing the international dimension of E&L as crucial, particularly in dealing with cross-border issues, as access based on licensing fails to address market failure in the smaller economies, and to date, has not enabled the import and export of accessible material due to the territoriality of copyright law and divergent E&L.

The groups were also strongly supportive of the proposal of Brazil, Ecuador and Paraguay relating to "Limitations and Exceptions: Treaty proposed by the World Blind Union (WBU)" submitted to the SCCR. (The treaty proposed by the World Blind Union is titled "WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons".)

The proposed treaty presents possible ways and means of facilitating and enhancing access to protected works for the blind, visually impaired, and other reading-disabled persons.

There was also support for addressing other E&Ls - for example, for distance learning, libraries, and education - under a broader framework, with the proposed treaty being a component of the framework.

The World Blind Union, the initial proponent of the proposed treaty, stressed that the proposed treaty was meant to facilitate access, along with protecting the rights of copyright holders.

The International Federation of Library Associations (IFLA) and Electronic Information for Libraries (e-IFL), representing libraries and library associations around the world, said that through E&L, copyright law has long supported the essential functions of libraries but these laws have not adequately kept pace for users of digital information in the global information environment, which has brought an urgent international dimension to the E&L needed by libraries.

IFLA and e-IFL highlighted four principles that should be considered in the formulation of E&L to enable libraries to fulfill their public mandate.

First, a library should be permitted to make copies of published and unpublished works in its collections for purposes of preservation, including migrating content to different formats. Second, general free use exceptions applicable to libraries, including reproduction for research or private use, should be made available.

Third, the term of copyright should be the life of the author plus 50 years, and once a work enters the public domain, it should remain there, available for all to use. Term extensions keep information under private ownership longer than defensible at the expense of the individuals whom libraries and educators serve.

Fourth, libraries and their users should be permitted to circumvent a technological protection measure for non-infringing uses of a work since implementation of anti-circumvention legislation often effectively eliminates existing exceptions in copyright law, IFLA and e-IFL said.

A further barrier is caused by licenses that prohibit lawful use, the libraries' representative said. The law of contract should not override the public law of copyright, but too many digital products are accompanied by licenses that prohibit lawful uses by libraries, the representative added.

IFLA and e-IFL also called for WIPO to consider concrete proposals for instruments that will guide IP administration, explicitly aimed at expanding the array of available copyright E&L globally, and in particular for developing countries.

WIPO Member States were also asked to take action to address the gaps in copyright provisions for libraries and archives in their national laws.

The Electronic Frontier Foundation (EFF), an influential US-based organisation, supported the proposed treaty as the first part of the work plan on copyright E&L. It said that a treaty for minimum copyright E&L on imports and exports of accessible format works is required to empower reading-disabled users to obtain access to information in the formats best suited to their particular needs, and for the development of innovative new assistive technologies.

Access regimes based on licensing frequently fail to address market failure in smaller economies, and to date, have not enabled the import and export of accessible material, it added. It further said that the international copyright regime should remain faithful to the mandate of Article 9 of the UN Convention on the Rights of Persons with Disabilities and empower reading-disabled users to develop their own presentation formats and assistive technologies that meet their needs.
Mandatory minimum E&L is essential to the future of cross-border and digital education and internationally accessible digital libraries, which are currently constrained by the divergence of E&L in different countries and the unclear application of private international law to the Internet, EFF said.

Educators, libraries, and other knowledge providers face uncertainty about what information they can digitize and make available without fear of legal liability. These problems are only likely to become more acute in the future because copyright law is territorial, but the Internet is global and facilitates flows of information services across borders, it further said.

EFF also said that E&L was critical to maintaining the legitimacy of the international copyright regime in the digital age. As such, the SCCR should begin work on guiding the construction of E&L that would revive balance in the international copyright regime and make it more effective for the 21st century, it added.

Another US-based NGO, Knowledge Ecology International (KEI), also supported the proposed treaty, as with the treaty there will be cross-border sharing of accessible works, while without the treaty, this would be quite limited. It said that society cannot rely upon publishers to guarantee human rights. It gave the example of Random House which announced that it would disable text-to-speech (a crucial tool for the blind) in all of its e-books, including books by Mother Teresa, the Pope, President Barack Obama, Toni Morrison and Stephen King.

It also supported efforts by the African Group and others to promote a treaty on access to knowledge, or several initiatives in special areas, such as education, which promote development and protect human rights. It requested the SCCR to establish space in the next SCCR meeting's agenda for a discussion of the modalities on moving forward earlier deliverables on the E&L agenda, with a recognition that some issues are more mature than others for norm-setting, but that all issues are equally important.

Public Knowledge (PK) said that the profusion of international treaties, including the Berne Convention, the TRIPS agreement, and the WIPO copyright treaty, require States to grant extensive protections to copyright owners, while providing very little guidance on the structure of limitations and exceptions, leading to interpretations of copyright law that severely constrict user rights. The SCCR holds the possibility of promoting a more balanced view of the international copyright regime, it added.

PK urged member states to begin deliberations on the proposed treaty for the blind and reading-disabled, as the proposal contains provisions that would enhance the ability of the blind to access information which is recognized by the Universal Declaration of Human Rights and other international instruments as a fundamental human right.

Inability to access information is in large part due to the territorial nature of copyright law, thus a solution to the problem needs to be devised at the international level where countries can agree upon norms to overcome these territorial limitations, it added. It should also address the issue of barriers to access created by technological protection measures used in delivering content digitally.

Consumers International (CI), with over 220 member organisations in 115 countries, also supported the proposed treaty. In response to suggestions that national solutions, as opposed to an international treaty, are better, CI said that many countries do not, and perhaps never will, have adequate exceptions unless international norms are set.

Its research found that developing countries whose consumers are amongst those most adversely affected by inflexible copyright laws tend not to be proactive in the adoption of E&L. Thus, it is insufficient to rely on national law for the protection of consumer interests in access to knowledge.

CI said that it is necessary for the SCCR to give serious and urgent consideration to the need for new minimum copyright E&L in order to fulfill WIPO's now broader responsibilities to all stakeholders in the international IP system, which includes not only rights holders but also consumers - particularly those who are disadvantaged.

The Centre for Technology and Society (CTS) at Fundacao Getulio Vargas (FGV), School of Law, in Rio de Janeiro, Brazil also supported the proposed treaty. It said that its research shows that developing and least developed countries lack the expertise and needed knowledge for implementing E&L. They are also often under strong pressure by industry lobbying not to implement meaningful E&L in their national legislation. It is now urgent for Member States to achieve a moral and legally-binding agreement for providing a balanced approach for all.

It said that a framework instrument may be the best option at this moment. General declarations on exceptions and limitations may be adopted by the Member States in this body in order to draw a starting point to the issue. Once this framework is agreed upon and adopted, further discussions should follow to adopt annexes on various topics, such as E&L for: (i) blind, visually impaired and print-disabled persons; (ii) educational purposes, including distance [learning]; (iii) libraries and archives; (iv) private non-commercial use, and so on.

This is not just a legal issue, it is a social and moral concern for all persons and countries, FGV added.

IQsensato, a research organization based in Geneva, in collaboration with the African Copyright and Access to Knowledge (ACA2K) Project, offered results to studies they conducted that explored the relationship between national copyright environments and access to knowledge.

IQsensato stated: "Overall, ACA2K research suggests that a more flexible copyright environment, with realistic limitations and exceptions, would likely facilitate more effective copyright enforcement and greater respect for copyright law generally." +